17:0790(109)NG - AFGE Local 32 and OPM -- 1985 FLRAdec NG

[ v17 p790 ] 17:0790(109)NG
The decision of the Authority follows:

17 FLRA No. 109
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 32
Union
and
OFFICE OF PERSONNEL MANAGEMENT
Agency
Case No. O-NG-924
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of seven Union proposals. /1/ Upon careful
consideration of the entire record, /2/ including the parties'
contentions, the Authority makes the following determinations.
Union Proposal 1
Section 1. At least 15 current employees will be trained as
personnel staffing specialist (GS-212-5/7) during fiscal year
1983.
This proposal, on its face, would require the Agency to train certain
employees as "personnel staffing specialists (GS-212-5/7)" within the
period of a fiscal year. In National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588 (1981) (Union Proposals I through III), the
Authority held that proposals which prescribed the type of training to
be assigned as well as its frequency and duration interfered with the
agency's right to assign work pursuant to section 7106(a)(2)(B). Hence,
since Union Proposal 1, herein, expressly seeks to establish the type of
training to be provided to employees, i.e., personnel staffing
specialist training, it is, based upon Federal Aviation Administration,
and the reasons and cases cited therein, not within the duty to bargain.
/3/
Union Proposal 2
Section 2. Entries in employees' individual development plans
constitute a commitment to provide the indicated training and
promotions, subject to the employees meeting applicable
requirements.
Union Proposal 2 is to the same effect as a proposal found to be
outside the duty to bargain in American Federation of Government
Employees, Local 32 and Office of Personnel Management, 16 FLRA No. 10
(1984) (Union Proposal 2). In that decision, the Authority held that a
proposal which would mandate provision of the exact training indicated
by entries in an employee development plan violated the agency's right
to assign work pursuant to section 7106(a)(2)(B) as it would, in effect,
specify the type of training to be provided. The Agency asserts,
without contravention, that Union Proposal 2, herein, likewise requires
management to provide the exact type of training specified in the
individual development plan. Hence, based on Office of Personnel
Management and the case cited therein, Union Proposal 2 is outside the
duty to bargain. /4/
Union Proposal 3
Section 3. Performance standards, as well as their
application, must be fair.
In agreement with the Agency, the Authority concludes that to the
extent Union Proposal 3 would require performance standards themselves
to be fair, it is to the same effect as the disputed portion of a
proposal found to be outside the duty to bargain in American Federation
of Government Employees, Local 32 and Office of Personnel Management, 16
FLRA No. 127 (1984) (Union Proposal 3), petition for review filed sub
nom. Local 32, American Federation of Government Employees. AFL-CIO v.
FLRA, No. 85-1038 (D.C. Cir., Jan. 16, 1985). In that decision the
Authority held that the disputed portion of a proposal which provided
"performance standards . . . must be fair and equitable" violated
management's rights to assign work and direct employees pursuant to
section 7106(a)(2)(A) and (B) of the Statute. Specifically, the
Authority indicated that while a proposal limited to establishing a
general nonquantitative requirement by which the application of
performance standards could subsequently be evaluated in a grievance
would be a negotiable appropriate arrangement pursuant to section
7106(b)(3) of the Statute according to the holding in American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Union
Proposal 5), a proposal which was specifically directed at the content
of the performance standards themselves would have the effect of
permitting arbitrators to substitute their judgment as to the content of
performance standards for that of the agency and would constitute a
substantial interference with management's rights. Consequently, based
on Office of Personnel Management, 16 FLRA No. 127, and the cases cited
therein, Union Proposal 3 herein is outside the duty to bargain.
Union Proposal 4
Section 4. Wherever feasible, jobs will be redesigned in order
to create career paths allowing employees now in deadend jobs to
be promoted non-competitively.
Essentially, Union Proposal 4 would result in the Agency being
required to alter its current organizational grade level structure,
whenever it was possible to do so, in order to provide promotion
opportunities for employees in "deadend jobs." In this respect, the
Authority determined in National Association of Government Inspectors
and Quality Assurance Personnel, Unit #2 and Naval Air Engineering
Center, Lakehurst, New Jersey, 8 FLRA 144 (1982) (Union Proposal 1),
that a proposal which required an agency's organizational grade level
structure to be designed to provide, among other things, promotion
opportunities for certain employees in deadend positions, conflicted
with the Agency's right to determine its organization pursuant to
section 7106(a)(1) of the Statute. Thus, to the extent Union Proposal 4
would require the Agency to change its organization grade structure it
is, based on Naval Air Engineering Center, Lakehurst, inconsistent with
management's right to determine its organization pursuant to section
7106(a)(1) of the Statute.
Moreover, Union Proposal 4, herein, would require that "jobs will be
redesigned" in order to achieve grade level organization changes. In
other words, the Agency would be required to reassign duties currently
assigned to positions or employees to other positions in order to create
the requisite number of positions at certain grades into which employees
with lower grades could be promoted. Thus, Union Proposal 4 expressly
would also interfere with the Agency's right pursuant to section
7106(a)(2)(B) of the Statute to determine the particular employee to
whom, or position to which, duties will be assigned. American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Union
Proposal XVI), enforced as to other matters sub nom. Department of
Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom.
AFGE v. FLRA, 455 U.S. 945 (1982). Consequently, as Union Proposal 4
would directly interfere with these management rights, individually and
collectively, it is outside the duty to bargain.
Union Proposal 5
Section 6. No position will be filled from outside OPM unless
OPM employees have been given the opportunity to compete for it
with the outside applicants. The availability of every vacancy
that is to be filled will be announced using the merit promotion
process. In-house and outside applicants will be rated and ranked
on the basis of their qualifications as matched against the
knowledges, skills, abilities and other characteristics that are
accurate indicators of the likelihood of success in the positions
applied for. If members of any group which is covered by the EEO
regulations are under-represented at the series and grade of the
position, and members of such groups apply for and are qualified
for the position, no lesser ranked member of a
non-under-represented group will be selected. (Only the
underlined portion is in dispute.)
Section 7106(a)(2)(C) of the Statute reserves to management the right
to make selections for appointments from among properly ranked and
certified candidates for promotion or from any other appropriate source.
In this respect, in American Federation of Government Employees,
AFL-CIO, Local 2578 and General Services Administration, National
Archives and Records Service, Washington, D.C., 3 FLRA 604 (1980), the
Authority determined that a proposal which set forth a certain
statistical goal for the elimination of underrepresentation in the
workforce by women and minorities but which did not require management
to take or refrain from taking any specific action toward the
achievement of that goal did not, among other things not here relevant,
prohibit management from exercising its rights pursuant to section
7106(a)(2)(C) of the Statute. The disputed portion of Union Proposal 5
herein, however, would expressly prohibit management from exercising its
rights pursuant to section 7106(a)(2)(C) in the circumstances described
in the proposal. That is, management would be precluded from selecting
a qualified candidate for a position if there existed any other
candidate who was a member of an underrepresented group and who had a
higher ranking. Moreover, if there was only one member of an
underrepresented group who had a higher ranking than the candidate
management proposed to select, the disputed portion of the proposal
would have the effect of mandating the selection of a particular
individual. Therefore, as the disputed portion of Union Proposal 5
would directly interfere with management's right to select pursuant to
section 7106(a)(2)(C) of the Statute, it is outside the duty to bargain.
Union Proposal 6
Section 7. The agency shall establish free, high-quality day
care facilities for the children of bargaining unit OPM employees.
Union Proposal 7
Section 8. There will be no change in the central office
operations hours, flexible hours, or core hours. Employees in the
Washington area office are added to the alternative work schedule
plan.
It appears from the record in this case that the Agency is not
contending that disputed proposals 6 and 7, also submitted by the Union
in collective bargaining over the Agency's proposed Affirmative Action
Plan, are nonnegotiable. That is, with respect to Proposal 6, the
Agency notes that the Authority has previously determined a proposal
requiring the providing of day care facilities to be within the duty to
bargain. /5/ The Agency then states, "(t)he negotiability of the
subject of (Proposal 6) is not in dispute." /6/ (Emphasis in original.)
Rather, the Agency contends that it has no duty to bargain on Proposal 6
because it is unrelated to the Affirmative Action Plan proposed by the
Agency. Similarly, with regard to Proposal 7, the Agency states, "(a)s
in (Proposal 6) the Union is attempting to 'shoehorn' the full range of
working condition proposals into impact and implementation bargaining on
a discrete matter." /7/ Consequently, as the Agency has made no
allegation that Union Proposals 6 and 7 are nonnegotiable, there is no
issue as to whether these two proposals are within the parties' duty to
bargain under the Statute. Cf. American Federation of Government
Employees, AFL-CIO, Local 3028 and Department of Health and Human
Services, Public Health Service, Alaska Area Native Health Service, 13
FLRA 697 (1984) (wherein the Authority found that failure to respond to
a union's request for an allegation was constructive declaration of
nonnegotiability so as to give rise to a right of appeal.)
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., May 7, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its response to the Union's petition for review, the Agency
withdrew its allegation as to an additional proposal concerning career
ladder promotions. Accordingly, there is no longer an issue as to
whether that proposal is within the duty to bargain. The Agency's
contention that a number of proposals in this case are outside the duty
to bargain because they are unrelated to the Agency's proposed
Affirmative Action Plan cannot be sustained. In this regard, the
Authority decides only the negotiability issues presented under section
7105(a)(2)(E) of the Statute. To the extent that there are factual
issues in dispute between the parties concerning the duty to bargain in
the specific circumstances of this case, such issues should be raised in
other appropriate proceedings. American Federation of Government
Employees, AFL-CIO, Local 2736 and Department of the Air Force,
Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force
Base, Michigan, 14 FLRA 302 (1984).
/2/ The Union did not file a Reply Brief in this case.
/3/ In view of this disposition, it is unnecessary to address the
Agency's further contention that this proposal is inconsistent with the
Agency's right to determine "the numbers . . . of employees . . .
assigned" pursuant to section 7106(b)(1) of the Statute.
/4/ In view of this disposition, it is unnecessary to address the
Agency's further contention that this proposal is inconsistent with
management's right to make selections pursuant to section 7106(a)(2)(C)
of the Statute.
/5/ American Federation of Government Employees, AFL-CIO, Local 32
and Office of Personnel Management, Washington, D.C., 6 FLRA 423 (1981)
enforced sub nom. Office of Personnel Management v. FLRA, 706 F.2d 1229
(D.C. Cir. 1983).
/6/ Agency Statement of Position at 8.
/7/ Id. at 9.